OF
Sr no 1. 2. 3. 4. . &. ).
,. -. 1 CONTENTS
Topics Page No Introduction an and me meaning of of Ju Jurisprudence Definitions Nature and scope of Jurisprudence Utility of Jurisprudence !.".#. !art$s concept of "a% !ans 'elson$s Pure T(eory of "a% *omparati+e study of !art and 'elson$s t(eories. *onclusion Suggestion /i0liograp(y
TABLE
SNDT WOMEN’S UNIVERSITY LAW SCHOOL
NAME- JAGRUTI VIJAY PARASHARE CLASS- LLM 1ST YEAR, SEMESTER 1 ROLL NO- 34 SUBJECT- JURISPRUDENCE TOPIC- COMPERTATIVE COMPERTATIVE STUDY OF HLA HART AND KELSON THEORY OF LAW SUBMISSION MONTH & YEAR- SEPTEMBER !1" NAME OF THE PROFESSOR- PROF# RAJESH WANKHEDE SIGNATURE -
INTRODUCTION AND MEANING OF JURISPRUDENCE$
Jurisprudence in simple %ords means p(ilosop(y of "a%. T(e %ord Jurisprudence (as 0een deri+ed from a "atin %ord Jurisprudential %(ic( means 'no%ledge of la%. T(e %ord Jurist means la% and prudential means no%ledge science or sill. T(us Jurisprudence signifies no%ledge or science of la% and its application. Jurisprudence co+ers t(e %(ole 0ody of legal principles. It could 0e seen t(at in 5ngland in t(e formati+e era of t(e common la% t(e term Jurisprudence %as 0eing used in generic sense to include t(e study of +arious areas of la%. !o%e+er in t(e 0eginning of 1- t( century t(eories propounded 0y many Jurists ga+e a definite meaning to t(e term Jurisprudence. T(e concept of la% (as assumed different meanings at different times. T(ere cannot 0e a commonly agreed definition of la% and Jurisprudence. T(e e+olution of a society 0eing of a dynamic nature it is +ery difficult for a definition of la% to get recognition of all t(e "egal system. T(e concept of Jurisprudence (as a long (istory of e+olution 0eginning from classical period to 21 st century modern Jurisprudence %it( num0er of c(anges in its nature in +arious stages of its e+olution. T(e rapid c(anges in modern times (a+e gi+en rise to ne% pro0lems and issues %(ic( are to 0e tacled 0y la% t(roug( practical approac(. 6(ile doing so t(e modern Jurisprudence (as to tae into consideration t(e social7economic and political condition c(anging pattern for t(e society %(ic( (as %idens its scope as a source of la%. #s seen a0o+e Jurisprudence in its %idest sense means no%ledge of la% 0ut in its limited sense it means e+olution and e8planation of general principles upon %(ic( actual rules of la% are 0ased. It is mainly concerned %it( t(e rules of e8ternal conduct %(ic( people are compelled to o0ey. T(erefore sometimes it is said t(at Jurisprudence is t(at science %(ic( gi+es us no%ledge a0out la% 0ut t(e term la% %e al%ays use in its a0stract sense i.e. not in t(e sense of concrete statutes 0ut in t(e sense of principles underlying la%. T(us t(ere are +arious 0ranc(es of la% e8isting in modern legal system suc( as contracts torts crimes properties la0or etc. In Jurisprudence %e (a+e to study t(e 0asic principles of eac( t(ese 0ranc(es of la% and %e are concerned %it( t(e detailed rules of t(ese la%s. Jurisprudence e8amines t(e general principles of la% t(erefore Jurisprudence may 0e considered to t(e study and systematic arrangement of t(e general principle of la%. Jurisprudence in its sense may 0e regulated as t(e p(ilosop(y of t(e la% dealing %it( t(e nature and t(e function of la%. In t(e modern times t(e term Jurisprudence oftenly is used 0ecause of rapid social c(anges as functional Jurisprudence. So far India is concerned9 t(e Indian Jurisprudence (as its origin in t(e ancient concept of D(arma %(ic( %as considered to 0e t(e 0est %ay to discipline in conducting t(emsel+es in t(e society. !o%e+er as t(e society progress t(e concept of Jurisprudence (as c(anged radically. India 0eing a 6elfare State
a ne% Indian Jurisprudence needs to 0e de+eloped so as to ensure t(at la% 0ecomes an effecti+e instrument to 0ring social c(ange. "a% plays a significant role in sustaining a sta0le social order. T(e %ord :urisprudence is deri+ed from a "atin ma8im as referred ;:urisprudential; 0ut o%es its origin to
(ope to o0tain a deeper understanding of t(e nature of la% of legal reasoning legal systems and of legal institutions. ?odern :urisprudence 0egan in t(e 1,t( century and %as focused on t(e first principles of t(e natural la% ci+il la% and t(e la% of nations. @eneral :urisprudence can 0e di+ided into categories 0ot( 0y t(e type of Auestion sc(olars see to ans%er and 0y t(e t(eories of :urisprudence or sc(ools of t(oug(t regarding (o% t(ose Auestions are 0est ans%ered. *ontemporary p(ilosop(y of la% %(ic( deals %it( general :urisprudence addresses pro0lems in t%o roug( groups. 1. Pro0lems internal to la% and legal systems as suc(. 2. Pro0lems of la% as a particular social institution as it relates to t(e larger political and social situation in %(ic( it e8ist. #ns%ers to t(ese Auestions come from four primary sc(ools of t(oug(t in general :urisprudenceB N%'(%) )%* is t(e idea t(at t(ere are rational o0:ecti+e limits to t(e po%er of legislati+e rulers.
T(e foundations of la% are accessi0le t(roug( reason and it is from t(ese la%s of nature t(at (uman7created la%s gain %(ate+er force t(ey (a+e. L+%) ./000/2 0y contrast to natural la% (olds t(at t(ere is no necessary connection 0et%een la% and morality and t(at t(e force of la% comes from some 0asic social facts. L+%) (+%)0/2 is a t(ird t(eory of :urisprudence %(ic( argues t(at t(e real %orld practice of la% is %(at determines %(at la% is9 t(e la% (as t(e force t(at it does 0ecause of %(at legislators 0arristers and :udges do %it( it. Similar approac(es (a+e 0een de+eloped in many different %ays in sociology of la%. C(00%) )+%) /'0+/ are a younger t(eory of :urisprudence t(at (as de+eloped since t(e 1-)s. It is primarily a negati+e t(esis t(at (olds t(at t(e la% is largely contradictory and can 0e 0est analyCed as an e8pression of t(e policy goals of t(e dominant social group.
#lso of note is t(e %or of t(e contemporary p(ilosop(er of la% . T(e %ord is first attested in 5nglis( in 1&2, at a time %(en t(e %ord prudence (ad meaning of no%ledge of or sill in a matter.
DEFINITIONS OF JURISPRUDENCE$
T(e term Jurisprudence (as 0een defined differently at different times 0ecause of different met(ods of inAuiry and approac( to t(e study of t(e su0:ects. Some of t(e definitions of t(e term Jurisprudence gi+en 0y +arious eminent Jurists as underB 1. J')0'/ S.5+$ Jurisprudence is "a%yer$s e8tra+ersion. It means Jurisprudence in+ol+es e8amination of precepts ideas and tec(niAues of la% 0y la%yers in t(e lig(t of disciplines ot(er t(an t(e la%. 2. U)0%5$ Jurisprudence means no%ledge of la%. !e %as t(e
+ie%ed Jurisprudence as a science of la% in a 0roader perspecti+e 0y co7relating la% and morality. 8# R./.+ P.'5$ Jurisprudence is a science of la% a 0ody of principles recogniCed and enforced 0y pu0lic and regular tri0unals in t(e administration Justice. !e concentrated on t(e functional aspect of la% and impact of la% and society on eac( ot(er. 1!# D(# M#J# S+95%$ Jurisprudence is a study of fundamental legal principles including t(eir p(ilosop(ical (istorical and sociological 0ases and analysis of legal concept. Erom t(e a0o+e discussed definitions of +arious Jurists it is pertinent to note t(at t(ere no commonly agreed definitions of Jurisprudence. 5ac( :urist is guided 0y (is o%n consciousness 0ut since t(e conception of t(e term la% till 0eginning of t(e 2 t( century a ne% approac( to t(e study of la% in relation to society is gi+en. Some :urists t(erefore treat la% as social engineering an instrument to 0ring a social c(ange. T(e function of la% is supplement to t(e social sciences.
SCOPE OF JURISPRUDENCE
In :urisprudence %e mainly study t(e nature of la% %(ic( includes its definition classification its nature and purpose t(e nature of rig(ts and duties and ot(er Auestions related to it. Jurisprudence includes all concepts of (uman order and (uman conduct in state and society. #ccording to :ustice P./.?u(er:ee :urisprudence is 0ot( an intellectual and idealistic a0straction as %ell as 0e(a+ioural study of man in society. It includes political social economic and cultural ideas. It co+ers t(e study of a man in relation to state and society. #ccording to t(e great :urist
t(e merits and de7merits of codification of la%s met(od of :udicial interpretation and reasoning an enAuiry into t(e administration of :ustice. 2. "egal *oncepts 7 It includes analysis of legal concepts suc( as rig(ts o0ligations property o%ners(ip possession acts negligence legal personality and t(e related issues. T(e study of t(ese a0stract legal concepts furnis(es a 0acground for t(e 0etter understanding of la% in its +arious forms. 3. "egal T(eory F "egal t(eory also constitutes one of t(e components of t(e Jurisprudence. "egal t(eory is concerned %it( la% as it e8ists and its functions in t(e society t(e manner in %(ic( la% is made and enforced and also t(e influence of social opinion and la% on eac( ot(er. "egal t(eory also relates la% %it( ot(er 0ranc(es suc( as religion p(ilosop(y et(ic politics etc. and pursues its study in a %ider social perspecti+e. "egal t(eory comprises p(ilosop(y of la%. It sees to e8amine and analyCe t(e p(ilosop(ical contents of la%. It attempts to ans%er %(at is la% in order to clarify t(e most of t(e legal concepts. "egal t(eory is one aspect of Jurisprudence. Jurisprudence co+ers a %ider field of study. It in+ol+es an in+estigation of la% %(ereas legal t(eory is an attempt to ans%er %(at is la%.
UTILITY OF JURISPRUDENCE$
T(ere is al%ays confusion as to t(e practical utility of Jurisprudence as a su0:ect as it is said t(at :urisprudence is an a0stract and t(eoretical su0:ect 0ut t(is +ie% is re:ected 0y +arious :urists. Salmond pointed out t(at :urisprudence (as its o%n intrinsic interest lie any ot(er su0:ect. T(e legal researc( on :urisprudence may (a+e t(eir effects on contemporary socio political t(oug(t and at t(e same time may t(emsel+es 0e influenced 0y t(ese ideologies. Jurisprudence (as its o%n practical applica0ility. It sees to t(e rationaliCe concepts of la% %(ic( ena0les us to sol+e t(e different pro0lems. Jurisprudence (as a great educational +alue. T(e logical analysis of legal concepts %idens t(e outloo of t(e la%yers and it s(arpens t(eir logical tec(niAue. !olland o0ser+ed t(at Jurisprudence t(ro% lig(t on t(e 0asic ideas and t(e fundamental principles of la% in a gi+en society. T(erefore some of t(e :urists call it t(e eye of "a%. Jurisprudence (elps t(e Judges and t(e la%yers in ascertaining t(e true meaning of t(e la% passed 0y t(e legislature 0y pro+iding t(e rules of interpretation. It furnis(es t(em to lacunae s(ortcomings and defects in t(e la%s framed 0y t(e legislature. T(e defect can 0e cured t(roug( t(eir :udicial interpretation. T(e study of :urisprudence (elps t(e students in rationaliCation t(e t(ining and prepares t(em for t(e good ci+il life. T(e no%ledge of la% and t(e legal (elps t(em to face e8igencies of (uman life. Jurisprudence is (elpful to legislators %(o play a +ital role in t(e process of la% maing. T(e study of Jurisprudence
(elps t(em to understand t(e tec(nicalities of t(e la% and legal precept and t(ere0y mae t(e study of la% easy and interesting. #ccording to <.6.?. Dias t(e study of Jurisprudence pro+ides an opportunity for t(e la%yers to 0ring t(eory into focus and maes it practically applica0le to life. H#L#A# H%(’/ .5+ .: L%*$
Prof. !er0ert "ionel #dolp(us !art %as 0orn in 1-). !e %ored as a professor of Jurisprudence of G8ford Uni+ersity during 1-27&,. T(en (e :oined as principal of /rasnose *ollege G8ford. !e e8panded (is legal t(eory 0ased on t(e relations(ip 0et%een la% and society. !e fa+ored analytical approac( to la% for a 0etter understanding of it 0ut (is notion of la% is altoget(er different from its predecessors 0ecause (e 0elie+ed t(at la% coercion and morality and relate social p(enomenon (a+ing sociological implications. !is classic %or t(e concept of la% %as %ritten in 1-&1 in %(ic( (e (as criticiCed #ustin$s *ommand t(eory of la%. "#6 #S # SHST5? GE "#6B Prof. !art (ad in(erited t(e legality of #ustin /ent(am and 'elsen. /ut (e did not try to define la% lie (is predecessors. !e tried to lay do%n t(e concept of la% and %(ile doing so (e elucidated t(e concept of rule of la%. #ccording to (im a legal system of rules are social in nature for t%o reasons #> T(ey regulate t(e conduct of mem0er of society and t(at is %(y t(ey are social in nature. /> T(ey are deri+ed from !uman social practices. 6(en t(ese rules are deri+ed from t(e social practice t(e sociological element is in:ected into it. T(oug( !art self7contradicted to (imself (e accepted social nature of la%. T(ere are ot(er rules also for e.g. rules of morality 0ut (e started t(at la% 0e separated from morality. !e also stated t(at legal rules as %ell as moral rules impose some sort of duty to act accordingly 0ut t(e only difference is t(at legal rule are organiCed and systematic %(ereas moral rules are not so. P
#ccording to !art t(ese rules are social in nature for t%o reasons7
1. T(ey regulate t(e conduct of mem0er of society and t(at is %(y t(ey are social in nature and 2. T(ey are deri+ed from (uman social practice. 6(en t(ese rules are said to 0e deri+ed from t(e social practice a sociological element is in:ected into la%. !art accepted social nature of la%. T(ere are ot(er rules also for e.g. rules of morality 0ut according to !art t(e legal rules and e+en t(e rules of morality impose some sort of duty to act accordingly. T(e only difference is t(at t(e legal rules are organiCed and systematic %(ereas moral rules are not so. •
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or proper la%s %(ic( are 0inding. T(e primary rules %(ic( impose duty upon indi+idual are 0inding 0ecause of t(e popular acceptance suc( as rules of 'ings(ip and family sentiments etc. #ccording to some :urist under t(e primary rules indi+iduals are reAuired to do or a0stain from doing certain acts %(et(er t(ey %is( to or not. T(ese Primary Uncertainty 2> Static *(aracter and 3> Inefficiency. S5*GND#
#ll t(e t(ree organs of t(e @o+ernment legislature e8ecuti+e and Judiciary comes under secondary rules. T(e primary and secondary rules are not separa0le. It is a com0ination to 0ot( %(ic( leads to t(e e8istence of legal system. !art (ad gi+en more emp(asis on secondary rules. !e :ustified t(ree types of secondary rulesB #> importance 2> immunity from deli0erate c(ange 3> +oluntary c(aracter of moral offences and 4> forms of moral pressure %(ic( separate it from etiAuette custom and ot(er social rules. T(e rule of se8ual 0e(a+ior pro+ides t(e 0est e8ample of morality. !art$s analysis
of legal rules is different from #ustin$s concept of legal rules. #ccording to #ustin t(e concept of State %as imposed and one %as o0liged and compelled to o0ey it. "a% prescri0es not a command 0ut standard of conduct. T(is standard is ad(ering to not only 0ecause t(ere is a sense of o0ligation to ad(ere to it 0ut also 0ecause t(ere is an e8pectation t(at ot(ers (a+e some o0ligation to ad(ere to it. T(erefore e+en person %(o cannot 0e compelled to o0ey t(e la% is still considered as (a+ing an o0ligation to o0ey. #ccording to t(is +ie% la% is concerned %it( o0ligations rat(er t(an coercion. #ccording to !art relying on (is t(eory a state can 0e compared %it( a clu0. T(e state officials are compared %it( officials of t(e clu0. Secondly t(is t(eory can 0e compared %it( a game of cricet. T(e umpires can 0e compared %it( t(e officials of t(e state. T!5<5 #<5 SG?5 D5?5
T(e most important demerit of !art$s t(eory is t(at (e (as compared t(is t(eory
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%it( t(e game of cricet. T(e State officials can mae la% %(ereas t(e umpires cannot frame t(e rules 0y t(emsel+es. T(e umpire is sometimes t(e mem0ers of t(e committee %(o frame t(e rules. #not(er gra+e demerit is t(at !art (as compared a clu0 %it( a State. T(is is a %rong
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analogy as in t(e case of state t(e set of officials are t(e State Gfficials %(ereas t(e officials of t(e clu0 are not aut(oriCed to mae la%s for t(e entire State. Secondly t(e la% of clu0 is pri+ate la%. 6(ereas t(e la% of State is t(e la% of land. T(irdly if a person diso0eys t(e clu0 rules t(e mem0ers(ip can 0e remo+ed %(ereas in case of State %(en a person diso0eys t(e la% (e is not remo+ed from t(e State 0ut (e is punis(ed. !art (as not considered any discretionary po%ers doctrine in (is t(eory. Secondary rules are not la%s 0ut po%ers and duties. !art (as confused 0et%een
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po%ers and la%s. !art$s e8planation of pre7legal and legal society seems a little +ague as !art says
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t(at if secondary rules do not e8ist t(at society suffers from dra%0ac and at t(e same time (e said t(at (a+ing secondary rules is a lu8ury. T!5<5 #<5 SG?5 ?5
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!art$s t(eory$s greatest merit is t(at it (as discouraged speculati+e t(ining. !art follo%s a logical met(od and ac(ie+ed clarity of t(oug(t and analysis. !art$s t(eory e8plains %(y t(e la% is applica0le e+en to it framers. !art (as ela0orated an important aspect of legal system i.e. is t(e State officials
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deri+e po%er or aut(ority from la%. !art (as co7related t(e concept lie po%er la% and study.
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!art$s primary rules pre+ail in t(e form of fundamental rig(ts. Secondary rules pre+ail in t(e form of po%ers of t(e different organs of t(e state. In t(e Indian legal system t(e la% is also applied to its framers. T(e po%er of officials is depend upon la%. !art is a supporter of analytical positi+ism 0ut (is concept of rule of la% is different from #ustin and 'elsen. T(e contri0ution of !art to :urisprudence is undou0ted of immense +alue. LEGAL POSITIVISMB
"egal positi+ism is a sc(ool of t(oug(t of p(ilosop(y of la% and :urisprudence largely de+eloped 0y eig(teent( and nineteent(7century legal t(iners suc( as Jeremy /ent(am and Jo(n #ustin. !o%e+er t(e most prominent figure in t(e (istory of legal positi+ism is !.".#. !art %(ose %or T(e *oncept of "a% caused a fundamental re7t(ining of t(e positi+ist doctrine and its relations(ip %it( t(e ot(er principal t(eories of la%. In more recent years t(e central claims of legal positi+ism (a+e come under attac from 9 as %e mig(t say in a more modern idiom positi+ism is t(e +ie% t(at la% is a Social construction. "egal positi+ism does not claim t(at t(e la%s so identified s(ould 0e follo%ed or o0eyed or t(at t(ere is +alue in (a+ing clear identifia0le rules =alt(oug( some positi+ists may also mae t(ese claims>. Indeed t(e la%s of a legal system may 0e Auite un:ust and t(e state may 0e Auite illegitimate. #s a result t(ere may 0e no o0ligation to o0ey t(em. ?oreo+er t(e fact t(at a la% (as 0een identified 0y a court as +alid pro+ides no guidance as to %(et(er t(e court s(ould apply it in a particular case. #s Jo(n @ardner (as said legal positi+ism is ;normati+ely inert;9 it is a t(eory of la% not a t(eory of legal practice ad:udication or political o0ligation. "egal positi+ists 0elie+e t(at intellectual clarity is 0est ac(ie+ed 0y lea+ing t(ese Auestions to a separate in+estigation.
HANS KELSEN’S CONCEPT OF LAW$
!ans 'elsen =1,,171-)3> %as anot(er :urist %(o (as t(e credit of re+i+ing t(e original analytical legal t(oug(t in t(e 2t( century t(roug( (is Pure t(eory of la%. !e %as 0orn at Prague in #ustria in 1,,1 and %as a professor of la% at t(e ienna Uni+ersity. !e %as also t(e :udge of t(e Supreme *onstitutional *ourt of #ustria for 1 years during 1-27 1-3. T(ereafter (e s(ifted to 5ngland. !e came to t(e United States and %ored as professor of la% in se+eral #merican uni+ersities and aut(oriCed many 0oos. !e %as emeritus professor of Political Science in t(e *alifornia Uni+ersity %(en (e e8pounded (is pure t(eory of la% %(ic( is considered to 0e 'elsen$s uniAue contri0ution to legal t(eory. '5"S5N$S PU<5 T!5G uni+ersity. T(oug(t t(e first e8position of t(eory too place in 1-11 it came in full 0loom in post%ar 5urope. T(e national and international conditions at t(at time may t(ro% lig(t on t(e 0asis and necessity of t(is approac(. T(e #ustrian *ode in force at t(at time %as prepared (undred years ago %(en t(e Natural "a%$ t(eory %as at its (eig(t. T(roug( t(e natural la% %as re:ected in 5ngland as early as in t(e 1- t( century in t(e continent it (ad its footing till t(e 0eginning of t(e 2 t( century. Ne% t(eories in t(e 2t( century started inflicting ser+e 0lo%s on Natural la%$ t(eories. T(e Pure T(eory of "a%$ also re:ected t(e idea of natural la%. Secondly elsen$s t(eory came also as a reaction against t(e modern sc(ools %(ic( (a+e %idened t(e 0oundaries of :urisprudence to suc( an e8tent t(at t(ey seem almost coterminous %it( t(ose of social sciences. T(irdly after 6orld 6ar I most of t(e countries in t(e *ontinent adopted %ritten constitutions. T(e idea of a fundamental la% as t(e 0asis of t(e legal system reflected in t(em. T(e idea of @rundnorm$ %(ic( may 0e said to 0e t(e foundation stone of t(e Pure T(eory$ and t(e definition of t(e la% as t(e (ierarc(y of norms$ seem to 0e inspired 0y t(e a0o+e principle. Eourt(ly t(e deat( and destruction caused 0y t(e dia0olical acti+ities of nations in t(e 6orld 6ar made t(e people to t(in a0out some effecti+e international organiCation %(ic( may control suc( acti+ities. T(e primacy of international la% %(ic( t(e Pure T(eory sees to esta0lis( can 0e e8plain in t(is conte8t. Pure t(eory is close to some ot(er t(eories. /ot( #ustin and 'elsen are positi+ists. Pure t(eory of 'elsen is as part of analytical positi+ism. 'elsen e8plained (is t(eory 0y met(od of analogy. !e deals %it( Is e8isting fact i.e. %(at la% is and not as it Gug(t to 0e. T(e t(eory of la%
must 0e distinguis(ed from t(e la% itself. "a% itself consists of a mass of (eterogeneous of rules and t(e function of t(eory of la% is to relate t(em in a logical pattern and to organiCe t(em in single orderly unit. It s(all 0e applica0le at all times and in all places. T(us 'elsen is an ad+ocate of general :urisprudence and (e %as a0le to arri+e at generaliCation %(ic( (olds %ell o+er a +ery %ide area. #ccording to 'elsen$s t(eory la% must 0e pure. It must 0e free from et(ics morality politic sociology and (istory. It must 0e pure. #ccording to 'elsen la% is a Normati+e$ Science. Jurisprudence is no%ledge of norms i.e. la% is normati+e science. # norm of la% is simply a proposition in (ypot(etical form. # norm (as a distinct feature. T(ey are different from normal science norms. "a% norms are oug(t norm la% does not attempt to descri0e %(at actually occur 0ut only prescri0e certain rules. It says t(at if one 0reas t(e la% t(en (e oug(t to 0e punis(ed. T(ese legal oug(t norms differs from morality norms 0ecause legal norms are 0aced 0y p(ysical force or compulsion 0ut 'elsen does not admit #ustin$s command t(eory of la% 0ecause #ustin (as introduced a psyc(ological element into t(e definition of la% %(ic( 'elsen a+oids. Eor 'elsen la% is no%ledge of (ierarc(y of normati+e relations. !e does not %ant to include in (is t(eory %(at la% oug(t to 0e 0ut for (im la% is a t(eory of analysis an analysis t(at is free from et(ical and political :udgement of +alue. !e attempts to esta0lis( uni+ersal principles in (is legal t(eory. 5+ery legal act relates to norm %(ic( gi+es legal +alidity to it . T(e norm deri+es its +alidity from an e8ternal source i.e. from a particular oug(t norm or sanction. /ut 'elsen$s concept of sanction differs from #ustin$s concept of Sanction. Eor 'elsen Sanction itself is anot(er norm t(at is not different in nature from t(e norm to %(ic( it supports. 6(ile #ustin$s concept of Sanction implies as if it is standing outside t(e rule of norms. In t(is %ay e+ery legal norm gains its force from more general norm %(ic( 0acs it. Ultimately t(at (ierarc(y relates 0ac to an initial norm or initial (ypot(esis called @rund Norm. It is from t(ese @rund norms t(at all inferior norms deri+e t(eir force. T(is @rund norm is (ypot(esis and it is accepted t(at it is +alid9 its +alidity cannot 0e c(allenged. T(us @rund norm is t(e 0asis of starting point in t(e legal system. Erom t(is 0ase legal system 0oarders do%n in gradation. T(e @rund norm is also no%n as #pe8 Norm %(ic( may 0e static i.e. la% of nature and dynamic norm. T(e gradation process of legal system from @rund norm 0ecomes more and more detailed and specific as it progresses. To t(is process 'elsen calls t(e gradual concretiCation of @rund norm. T(us focusing a la% to a specific situation. T(is process of gradual concretiCation of @rund norm is a dynamic process. In e+ery legal system t(ere is al%ays a @rund norm alt(oug( its forms are different in different legal systems. In /ritain t(e @rund norm is cro%ned in parliament. In US# and India it is t(e constitution. T(e @rund norm can 0e recogniCed 0y minimum effecti+eness %(ic( it possesses. 6(at is t(e nature and origin of @rund norm is not
%it(in t(e pro+ince of t(e pure t(eory of la%. T(ese are t(e pre7legal Auestions in %(ic( :urist are not concerned. T(e tas of legal t(eory is only to clarify t(e relation 0et%een t(e @rund norm and ot(er inferior norms and not to enter into ot(er Auestion as to t(e goodness and 0adness of @rund norm. /efore applying 'elsen$s t(eory to any legal system one must disco+er @rund norm. S#"I5NT E5#TU<5S GE '5"S5N$S PU<5 T!5G
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Prof. 'elsen made original +alua0le contri0ution to t(e Jurisprudence. !e (as no dou0t influence modern t(oug(ts. !is analysis of legal concepts suc( as rig(t personality states and pu0lic and pri+ate la% (a+e recei+ed great support. !e is positi+ist. !is logical and scientific approac( of legal order is +ery con+incing. Practical +alue to t(e la%yers. #t least it clears mind and after t(at (e is free to mae c(oice of ideology. 'elsen$s t(eory of la% can 0e e8plained in Indian conte8t. *onstitution of India is a @rundnorm %(ic( is pure. #s @rundnorm is pure t(en inferior legal norms are also pure. COMPERATIVE STUDY OF HART’S AND KELSEN’S THEORYB
Erom all t(e a0o+e discussion and researc( 0ot( !art$s and 'elsen$s t(eories are clear. T(ey 0ot( put t(eir t(oug(ts on Jurisprudence and its practical implication on la%. #ccording to 0ot( t(e 0asic norm @rundnorm$ is t(e superior norm in t(e study of t(e Jurisprudence. It is clear t(at t(ey 0ot( are agreed on t(e Normati+ity of la% and la%s are 0ased on t(e 0asic norms. #ccording to 0ot( of t(em t(e norms plays an important role in t(e study of Jurisprudence. T(eir 0ot( concepts are comparati+e in nature on t(e 0asis of Normati+ity of la%. In order to do t(e comparati+e study of t(e !art and 'elsen$s concepts %e need to s(are some points %(ic( are agreed 0y 0ot( t(e :urists. In interest of comparati+e study %e need to t(ro% some lig(t on t(e same t(oug(ts of t(e !art and 'elsen regarding e+aluation of Jurisprudence and la%. #s per t(e 'elsen$s point of +ie% t(e Pure T(eory concei+es of la% as a system of norms suc( norms function as sc(emes of interpretation in lig(t of %(ic( %e can +ie% (uman 0e(a+ior and ot(er natural e+ents. T(e structure of suc( a system is descri0ed 0y 'elsen as a structure of norms on different le+els %(ere norms on a (ig(er le+el aut(oriCe t(e creation of norms on a lo%er le+el. Gn 'elsen$s analysis a norm is t(e meaning of an act of %(ic( directed at t(e 0e(a+ior of anot(er. "egal norms differ from t(e orders issued 0y t(e ?afia 0oss in t(at t(ey also e8press an o0:ecti+e oug(t t(at t(e act in Auestion oug(t to 0e performed not only from t(e +ie%point of t(e person positing t(e norm 0ut also from t(e +ie%point of t(e person %(ose 0e(a+ior t(e norm regulates and from t(e +ie%point of a neutral t(ird party. #s per t(e !.".#. !art$s point of +ie% lie 'elsen !art concei+es of la% as a system of norms t(e foundation of %(ic( is a single fundamental norm. #nd :ust as 'elsen$s account of la%$s Normati+ity rests ultimately on a fundamental presupposed norm =t(e 0asic norm> !art$s account of la%$s Normati+ity rests ultimately on a fundamental accepted norm %(ic( (e calls t(e rule of recognition. T(e pro0lem !art faces is t(erefore t(e same pro0lem as 'elsen faced i.e. to e8plain (o% t(is fundamental norm can ground t(e Normati+ity of la%. To say t(at a legal norm is +alid 'elsen and !art e8plains is to say t(at it e8ists and to say t(at it e8ists is to say t(at it oug(t to 0e o0eyed or applied t(at it (as 0inding force. To say t(at a +alid legal norm e8presses an o0:ecti+e oug(t is :ust anot(er %ay of e8pressing t(e same idea. 'elsen maintains in eeping %it( t(e separation t(esis t(at legal +alidity is conceptually independent of morality.
6e s(ould note (ere t(at 'elsen accepts as fundamental and self7e+idently correct t(e distinction 0et%een %(at is and %(at oug(t to 0e 0et%een t(e %orld of is and t(e %orld of oug(t as (e used to say in (is earlier %ritings. !e concei+es of is$ and oug(t$ as t%o fundamental and distinct categories or modes of t(oug(t and (e taes t(e meaning of oug(t$ to 0e intuiti+ely clear e8pressing t(e specific sense in %(ic( (uman 0e(a+ior is determined 0y a norm. Gug(t$ (e says is a simple notion and it can t(erefore not 0e defined "a% t(en is a normati+e p(enomenon and as suc( it must 0e carefully distinguis(ed from factual p(enomena 0ut also from ot(er normati+e p(enomena. Since t(is is so legal sc(olars can in+oe neit(er =i> empirical considerations from psyc(ology sociology economics political science etc. =ii> normati+e considerations from et(ics t(eology etc. in t(eir analyses of t(e la%. #s 'elsen says t(e 0asic met(odological aim of t(e Pure T(eory is to free t(e study of la% from all foreign elements to a+oid met(odological syncretism. T(is is %(at t(e purity of t(e Pure T(eory amounts to. #s one mig(t e8pect 'elsen re:ects Jo(n #ustin$s command t(eory of la%. !e maintains instead t(at a command can 0e 0inding only if t(e commander (as t(e legal po%er to issue t(at command and t(at t(e commander$s legal po%er depends on t(e e8istence of a legal system t(at confers on (im t(e reAuisite legal po%er. !ence a gangster$s command t(at you (and o+er your money to (im cannot 0e 0inding as t(ere is no +alid legal norm conferring legal po%er on t(e gangster to issue suc( commands. 6(en tracing t(e +alidity of a gi+en legal norm t(roug( t(e c(ain of +alidity one finally arri+es at t(e (istorically first constitution. Since t(at constitution cannot (a+e 0een created in accordance %it( anot(er and (ig(er +alid norm 'elsen and !art terminates t(e c(ain of +alidity 0y simply presupposing t(at %e oug(t to 0e(a+e in accordance %it( t(e (istorically first constitution. !e calls t(is presupposition t(e 0asic norm =@rundnorm> and e8plains t(at it is t(e final postulate upon %(ic( t(e +alidity of all t(e norms of our legal system depends. So t(e 0asic norm is t(e tool %e use to distinguis( 0et%een la% and coercion 0et%een 0eing o0ligated and 0eing o0liged %(ic( means t(at it grounds t(e Normati+ity of la%.
CONCLUSION AND SUGGESTION$
#ccording to all t(e a0o+e discussion and researc( %e (a+e come to t(e conclusion t(at Jurisprudence means no%ledge of la% or science of la%. It signifies no%ledge or science of la% and its application. It co+ers t(e %(ole 0ody of legal principle. T(e concept of la% (as assumed different meanings at different times. T(ere cannot 0e a commonly agreed definition of t(e la%. In Jurisprudence %e mainly study t(e nature of la% %(ic( includes its classification its nature purpose and ot(er points related to it. Jurisprudence includes all concepts of (uman order and (uman conduct in State and society. Jurisprudence (elps t(e :udges and t(e la%yers in ascertaining t(e true meaning of la%s passed 0y legislature 0y pro+iding t(e rules of interpretation. T(e defect in t(e la% can 0e cured t(roug( t(eir :udicial interpretation. Jurisprudence is closely inter7 related %it( ot(er social sciences since all of t(em are concerned %it( (uman 0e(a+ior in society. Prof. !.".#. !art is a supporter of analytical positi+ism 0ut (is concept of rule of la% is different from t(e ot(er :urists. T(e contri0ution of !art to t(e study of t(e Jurisprudence is undou0ted of immense +alue. Prof. 'elsen made +alua0le contri0ution to Jurisprudence. !is analysis of legal concepts suc( as rig(t personality pu0lic and pri+ate la% (a+e recei+ed great support. !is logical and scientific approac( of legal order is +ery con+incing. 'elsen$s t(eory of la% can 0e e8plained in Indian conte8t. *onstitution of India is a @rundnorm %(ic( is pure and supreme. #s t(e @rundnorm is pure t(en inferior legal norms are also pure. T(e cooperati+e study of 0ot( of t(e Jurists !art and 'elsen gi+es t(e ne% +ie% and turn to t(e study of t(e Jurisprudence. T(ey 0ot( are t(e Positi+ists. T(ey 0ot( no dou0t (a+e influenced modern t(oug(t.
BIBLIOGRAPHY
NGT5S GN JU
